Akter (Migration)

[2020] AATA 4229

Akter (Migration) [2020] AATA 4229 (7 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Jesmin Akter
Miss Arya Zunairah Rahman
Miss Lia Zavira Rahman
Mr Ziaur Rahman

CASE NUMBER:  1902293

DIBP REFERENCE(S):  BCC2009/234647

MEMBER:Jade Murphy

DATE:7 October 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 886 (Skilled - Sponsored) visas:

· Public Interest Criterion 4020 for the purposes of cl.886.225 of Schedule 2 to the Regulations.

Statement made on 07 October 2020 at 4:00pm

CATCHWORDS

MIGRATION – Skilled (Residence) (Class VB) visa – Subclass 886 (Skilled – Sponsored) – Federal Circuit Court remittal – bogus document – false or misleading evidence of work experience provided for skills assessment – 900 hours of work experience – employer’s uncertain identification of applicant from photo – many work experience students – log book and employment letter – spontaneous and detailed oral evidence from employer and applicant – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65, 359A, 375A
Migration Regulations 1994 (Cth), Schedule 2, cl 886.225, Schedule 4, PIC 4020

CASES

Arora v MIBP [2016] FCAFC 35

Batra v MIAC [2013] FCA 274

Trivedi v MIBP [2014] FCAFC 42

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 July 2015 to refuse to grant the applicants Skilled (Residence) (Class VB) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 25 June 2009. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not satisfy the requirements of cl.886.225 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because there was evidence that she had provided false or misleading information in relation to her claimed 900 hours of work experience which she had relied on for the purposes of a skills assessment dated 20 September 2008.

3. On 28 July 2015 the applicant applied to the Tribunal for review of the delegate’s decision. The applicants were represented in relation to the review by their registered migration agent.

4. The applicant appeared before the Tribunal, differently constituted, on 9 May 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Md Nazimol Haque, the applicant’s claimed former employer and Mr Mohammad Monirul Islam, Mrs Akter’s brother.

5. The Tribunal also considered the following submissions and evidence provided by the applicant’s migration agent:

   ·Submissions of the applicant’s migration agent dated 2 May 2016.

   ·Statutory declaration of Mr Haque, the applicant’s claimed employer dated 30 April 2016.

6. On 22 February 2016 the Tribunal requested information from the Department concerning the site visit conducted at the applicant’s claimed place of employment on 27 May 2011, referred to in the decision of the delegate.

7. On 2 March 2016 the Department provided these notes and a certificate dated 1 March 2016 issued by a delegate of the Minister pursuant to s.375A of the Act. The certificate stated that the Tribunal must do all that was necessary to ensure that information relating to the site visit notes, and the certificate itself was not disclosed. The purported reason was that disclosure of this information would be contrary to the public interest because it contained information pertaining to persons not related to the visa application and information relating to the Department’s core business and internal decision-making process. The certificate stated that the release of this information could compromise the safety and/or integrity of the individuals and be detrimental to the way the Department conducted its business.

8. On 11 May 2016 the Tribunal wrote to the applicants pursuant to s.359A of the Act, inviting the applicant to comment or respond on information from the site visit and oral evidence received at the hearing. The letter gave the following particulars:

   A. Information contained in typed and handwritten notes made in relation to a visit by officers of the Department of Immigration to Dhaka Restaurant (“the restaurant”) on 27 May 2011:

   1) Mr Md Nazimul Haque told officers that the students who did voluntary work at the restaurant had their own log book that he would check and sign and that the students kept the log book and would be able to show that.

   2) Shown a photograph (photograph number 4) of you, Mr Haque said that he was not 100% sure that the person in the photograph was someone who worked for him although it appeared that she did

   3) In relation to your work reference dated 25 August 2008, Mr Haque said that he did not think that the person named in the reference worked for him but thought she might be the person in photograph number 4. He said that, if she did work for him, it would not have been for a full 900 hours. She worked for only 3-4 months. Mr Haque further said that she should have a log book.

   B. Oral evidence given by Mr Haque at the hearing on 9 May:

   1) Mr Haque acknowledged that it was possible that he completed the entries in his own log book at the same time and that it was possible that he did that after August 2008.

   2) He was not sure if you had your own log book.

   3) He could not remember signing any book of yours.

   4) He did not show his log book to officers.

   5) He always saw you wearing the hijab at work.

   C. Oral evidence given by Mr Mohammad Monirul Islam at the hearing on 9 May:

   1) Mr Islam recalled that you worked at the restaurant for approximately six months.

   2) He said that you worked on Tuesdays, Fridays and sometimes on the weekend but not every weekend or nearly every weekend.

   3) He said that you did not wear the hijab on the occasions that he dropped you off to work at the restaurant.

9.    The letter explained that the information was relevant to the review and that if the Tribunal relied upon it, it may find that the applicants did not meet the requirements for the grant of the visa and may affirm the decision of the delegate.

1. The applicant’s migration agent provided a response to the s.359A letter, including the following:

   ·Submissions of the applicant’s migration agent dated 25 May 2016.

   ·Copy of the applicant’s Trades Recognition Australia (TRA) application.

   ·Certified copy of the applicant’s logbook along with documents certified at the same time.

   ·Statutory declaration of the applicant dated 25 May 2016.

   ·Statutory declaration of the applicant’s claimed employer dated 25 May 2016.

2. On 24 June 2016 the Tribunal made a decision to affirm the decision of the delegate not to grant the applicants Skilled (Residence) (Class VB) visas. The Tribunal was not satisfied that the applicant had completed 900 hours of work experience and therefore the skills assessment which the applicant had provided to the Department was a bogus document and the Tribunal was not satisfied that circumstances existed to justify a waiver of the provision.

3. The Tribunal made this determination after considering the notes relating to a site visit that was undertaken by the Department, the hours and wages records that purported to show the applicant’s work experience and oral evidence received at the hearing.

4. The applicant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. On 10 December 2018 Judge Reithmuller made orders quashing the decision of the Tribunal and remitting the applicant’s review application to the Tribunal for determination according to law.[1] In his judgment, Reithmuller J found that the certificate purportedly issued under s.375A of the Act was invalid as the material covered by the certificate did not provide a basis for concluding that its disclosure would compromise individuals’ safety or result in detriment to the way the Department conducts its business. His honour noted the material was significant as it recorded that the applicant’s claimed employer was able to confidently identify in photographs other persons who had worked for him even considering the significant period of time before the inquires were conducted, in contrast to his lack of memory and lack of assurance of the identity of the applicant when shown her photograph. This information was relevant when assessing the evidence of the applicant’s claimed employer, but it was not mentioned in the decision and the applicant was not given a chance to respond to it.

   [1] Akter v Minister for Immigration [2018] FCCA 3604 (10 December 2018)

5. The applicant appeared before the Tribunal via videoconference on 30 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence via telephone from Mr Nazim Haque, former owner and Head Chef of Dhaka Restaurant.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.886.225 for the grant of the visa. Broadly speaking, this requires that:

   ·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and

   ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and

   ·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and

   ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).

8. The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.

   Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in a material particular?

9. In addition to the Department file, and previous AAT review file, the applicant provided the following for the purposes of this review:

   ·Submissions of the applicant’s migration agent dated 23 September 2020;

   ·Statement of Mr Haque dated 24 September 2020;

   ·Timeline of events provided by the applicant’s migration agent dated 24 September 2020;

   ·A Contract Estimate for the construction of a double story house signed by the applicant on 30 July 2020;

   ·Wages and Record Book relating to the applicant’s employment;

   ·TRA Skills Assessment dated 20 September 2008; and

   ·Employment letter issued by Mr Haque dated 25 August 2008.

10. The Tribunal has had regard to all documents contained in the Department file, previous AAT file and the above in relation to this review.

11. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s.5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.

12. The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether the document or information was provided by the applicant knowingly or unwittingly.

13. While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.

14. The applicant claimed in her application for her Subclass 886 visa that she had completed 900 hours of work experience with Dhaka Restaurant during 2007 – 2008, under the supervision of Mr Haque. The applicant relied on this claim for the purposes of a TRA skills assessment which she successfully obtained on 20 September 2008. The delegate found that the skills assessment provided was a bogus document as a result of the false or misleading information regarding her work experience.

15. The decision record indicates that Departmental officers conducted a site visit on 27 May 2011 to verify the applicant’s work experience claims with Dhaka Restaurant. Following a discussion with Mr Haque, Departmental officers made handwritten notes that state:

    Reference for Jesminer Akhtar, M.H. does not think she worked for him thinks this might be #4. If she did work it would not have been for a full 900 hours. ‘She would have a logbook’. M.H. stated we should check this.

16. Further, the typed notes of the Departmental site visit record Mr Haque as having told Departmental officers that the applicant had not worked for him.

17. Following this site visit on 27 May 2011, the visa applicant was given 28 days to provide comment on suspected non-genuine information supplied to the Department. In response the applicant provided the following information/documents:

    ·Statutory Declaration from Mr Haque dated 19 June 2015;

    ·Work Reference Letter dated 25 August 2008; and

    ·Time sheets from 20 September 2007 – 6 October 2007.

18. As contained in the delegate’s decision, the delegate was not satisfied that the adverse information obtained during the site visit had been sufficiently explained by the applicant’s response. The delegate placed greater weight on initial comments of Mr Haque at interview when asked to identify the applicant from a photo board, rather than the statutory declaration from the applicant, statutory declaration from Mr Haque, logbook recorded at the time of completing her work experience of hours worked, and the work reference letter provided by Mr Haque to the applicant upon completion of her work experience. As a result, the delegate was not satisfied that the applicant completed 900 hours of work experience at Dhaka Restaurant from 2007 – 2008 as claimed. The delegate stated that the claim to have completed 900 hours of work experience at Dhaka restaurant was false and misleading at the time it was given and therefore the applicant did not meet cl.886.225 and PIC4020.

    The applicant’s evidence at hearing

19. At hearing, the applicant was asked to comment on the delegate’s concerns as expressed in the decision record, and as set out above.

20. The applicant responded that she maintains she completed 900 hours of work experience under the direct supervision of Mr Haque at Dhaka Restaurant for a 10-month period over 2007 – 2008.  The applicant gave comprehensive oral evidence about the operation of Dhaka Restaurant during her time there including hours of trade, layout of the restaurant, capacity of diners and staff, menu items, including specific recipes, and other workers there at the relevant time, including names of managerial staff and other work experience students.

21. The applicant stated that when the site visit occurred, several years after she had completed her work experience with Mr Haque in 2008, the Departmental officers asked Mr Haque to identify her from a photograph in which she was not wearing a hijab. The applicant stated that the Department had obtained her passport photograph in which she was not permitted to wear her hijab. However, in public she is always wearing this. The applicant submitted that this changed her appearance in a way that Mr Haque could reasonably have been initially confused as to her identity in the photograph. Further, Mr Haque had told her subsequently that it was a poor-quality photograph. Having viewed the photograph on file, the Tribunal places little weight on the statement that the photograph was of poor quality, however, places significant weight on the fact that the photograph depicted the applicant in a way that stripped her of a fundamental characteristic such that someone, several years later, might be confused as to her identity.

22. As stated in the delegate’s decision, the delegate noted that there were inconsistencies between Mr Haque’s initial inability to identify the applicant from the photo board, and with the work reference letter and subsequent statutory declaration. The Tribunal considers, though, that the above discussion is a reasonable explanation as to why Mr Haque might have found that task a challenging one and indeed, Mr Haque’s oral evidence added further weight to the Tribunal’s view in this regard.

    Evidence of Mr Nazim Haque

23. The Tribunal took sworn evidence via telephone from Mr Nazim Haque, former owner and Head Chef at Dhaka Restaurant. Mr Haque told the Tribunal he held these positions since he started the business in 2006 until he sold it in 2018. Mr Haque told the Tribunal that he now owns a restaurant called Madhumoti Restaurant in Footscray.

24. Mr Haque was asked questions by the Tribunal regarding the size, volume of customers, other employees at the restaurant at the relevant time, and the cuisine the restaurant specialised in, dishes it served, and all answers were consistent with and supportive of the answers given by the applicant.

25. The Tribunal commented on the statutory declarations provided by Mr Haque in this matter, noting that an additional statement was provided for the specific purpose of this review, dated 23 September 2020.

26. The Tribunal referred Mr Haque to the Departmental officers site visit and his answers at the time he was shown a picture of the applicant that he did not think she worked for him, and that if she had it would not have been for the full 900 hours. In response, Mr Haque reiterated his previous response that the photograph of the applicant had been unclear, and she had not been wearing her hijab in the photograph, which she had worn on each occasion that she worked in the restaurant. Further, Mr Haque told the Tribunal he experienced some confusion at the time as Departmental officers kept referring to the applicant as ‘Akter’ when he had known her by her nickname ‘Jesminer.’

27. At hearing, Mr Haque told the Tribunal that throughout his time owning and operating Dhaka Restaurant, he had up to 20 work experience students volunteering in his kitchen. He worked as the head chef and on his evidence, there were no other kitchen staff who were there on a permanent or semi-permanent basis. Every other kitchen worker was a work experience student because as he put it ‘in those days they were free.’ His submission was supported by the applicant’s evidence and the other people she remembered working with at the relevant time. The Tribunal accepts Mr Haque’s evidence in this regard and considers that it provides another reasonable explanation as to why Mr Haque might have difficulty identifying the applicant from a photo board after several years.

    Findings

1. The Tribunal has considered the circumstances in which the Department formed its conclusions that the applicant’s claims of work experience with Dhaka Restaurant as a volunteer Cook from October 2007 – August 2008 were false and misleading and the TRA skills assessment obtained as a result of the claims of work experience was a bogus document.

2. The Tribunal has formed a different view to that of the Department. Particularly persuasive was the oral evidence taken directly from Mr Haque regarding the confusion he experienced when he was questioned by Departmental officers and asked to identify the applicant. The Tribunal found the verbal evidence from both Mr Haque and the applicant to be consistent and credible.

3. When the Tribunal questioned the applicant about her work experience at Dhaka Restaurant, she was able to describe her responsibilities and specific details about the operation of the business and her work with other team members. Her account of the names and positions of other employees there at the time, menu items (including specific ingredients), layout of the restaurant, seating capacity, and kitchen capacity was spontaneous and comprehensive. All details given by the applicant were supported and confirmed by the oral evidence of Mr Haque who also gave spontaneous and detailed evidence. The Tribunal places significant weight on the applicant’s answers in this regard, as well as Mr Haque’s corroborating statements given they are specific details that the applicant could only have known if she had worked in the restaurant. Given the significant passage of time, the Tribunal places increased favourable weight on it as the Tribunal considers they are such routine and mundane details that would only be remembered if the applicant had spent a significant amount of time at Dhaka Restaurant.

4. The Tribunal notes when the Department conducted the site visit, they spoke with Mr Haque about the operation of his business, as well as asking him to identify several other people who had worked in his restaurant from a photo board. Mr Haque’s evidence is that at any given time he could have up to 20 workers, most of whom were volunteer work experience students. This was supported by the applicant’s evidence when she recalled the number of other students working there at the same time as she had. Given the time that had lapsed between the cessation of the applicant’s work experience and the Departmental visit, especially in light of the volume of work experience students that Mr Haque took on, it is not in the Tribunal’s view, unreasonable to consider that Mr Haque might have trouble recollecting one of the workers. This is particularly so, in circumstances where the applicant appeared without a hijab and the applicant was only known to Mr Haque as a woman who always wore one. The delegate placed greater weight on the initial difficulty Mr Haque had with identifying the applicant from a photo board, when as discussed, the photograph did not depict the applicant as she would have normally presented, and in the Tribunal’s view did not place enough weight on the reasonable explanation given by Mr Haque as to why he may have been unable to identify the applicant from this particular photograph, the work reference letter signed by Mr Haque in 2008 and the log book extract of hours worked provided by the applicant. The Tribunal places more weight on Mr Haque’s reasoning as to why he was unable to identify the applicant from a photo board several years after having the applicant complete her work experience in his restaurant, and the documentary evidence that supports the applicant’s claims of 900 hours of work experience at Dhaka Restaurant.

5. The Tribunal accepts Mr Haque’s evidence and places significant weight on his testimony regarding the applicant’s work experience at Dhaka Restaurant, the duties she performed while there and his explanation of inconsistent statements provided to Departmental officers during the site visit.

6. The Department’s findings that the claims of work experience were false and misleading and the skills assessment provided by the applicant is bogus were based on a site visit and an interview with Mr Haque in which he failed to identify the applicant from a photo board containing a photo of the applicant (which, on the Tribunal’s view, did not represent the applicant as she would have been known to Mr Haque) several years after having completed her work experience and in circumstances where he had up to 20 work experience students in his restaurant at any given time over a span of 12 years, on a rotational basis each of approximately 9-10 months. However, the Tribunal is satisfied, having received written and verbal evidence from Mr Haque, Owner and Head chef of Dhaka Restaurant, that the claims of work experience were not false and misleading and therefore that the TRA skills assessment is not a bogus document. It is apparent to the Tribunal that the photograph used when asking Mr Haque to identify the applicant was not appropriate given such a fundamental piece of her identity and regular appearance was missing from the photograph, such that Mr Haque could reasonably be taken to have some confusion over the identity of the person contained in it. In addition, Mr Haque’s evidence that officers referred to her as ‘Akter’ when he knew her as ‘Jesminer’ and the sheer volume of work experience students taken on by Mr Haque at Dhaka Restaurant and the significant passage of time also carry weight with the Tribunal as plausible factors understandably leading to confusion in Mr Haque at the relevant time. Due to the significant problem with the photograph used, the Tribunal places little weight on the statements obtained from Mr Haque at the time of identifying the applicant from the photo board. Instead, the Tribunal places significant favourable weight on the evidence of Mr Haque in subsequent statutory declarations and at hearing, supported by the logbook entries of the applicant’s work, the work reference letter and the oral evidence of the applicant at hearing.

7. The Tribunal has formed the view on the evidence before it that the claim of 900 hours of work experience with Mr Haque is not false and misleading and that the skills assessment is not a bogus document.

8. The Tribunal finds that there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a medical officer of the Commonwealth, a bogus document and/or information that is false or misleading in a material particular in relation to the visa application held in the 12 months before the visa application was made.

9. Therefore, the applicant meets PIC 4020(1).

   Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(1)?

10. PIC 4020(2) requires the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2AA). 

11. There is no information before the Tribunal to suggest the applicant or any member of the family unit (as defined in r.1.12 of the Regulations) have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(1).

12. Therefore, PIC 4020(2) does not apply.

    Has the applicant satisfied the identity requirements?

13. PIC 4020(2A) requires an applicant to satisfy the Tribunal as to his or her identity.  Based on the identity information contained on the Departmental file, the Tribunal is satisfied as to the applicant’s identity.

14. Therefore, the applicant meets PIC 4020(2A).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020(2A)?

15. PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements in PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).

16. There is no information before the Tribunal to suggest that the applicant or any member of the family unit (as defined in r.1.12) have been refused a visa in the relevant period because of a failure to satisfy PIC 4020(2A).

17. Therefore PIC 4020(2B) does not apply.

18. Based on the above, the applicant does satisfy PIC 4020 for the purposes of cl.886.225.

    DECISION

19. The Tribunal remits the applications for Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the first named applicant meets the following criteria for Subclass 886 (Skilled - Sponsored) visas:

    ·Public Interest Criterion 4020 for the purposes of cl.886.225 of Schedule 2 to the Regulations.

    Jade Murphy
    Member

    ATTACHMENT

    Migration Regulations 1994

    Schedule 4

    4020(1)      There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

    (a)the application for the visa; or

    (b)a visa that the applicant held in the period of 12 months before the application was made.

    (2)The Minister is satisfied that during the period:

    (a)starting 3 years before the application was made; and

    (b)ending when the Minister makes a decision to grant or refuse to grant the visa;

    the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

    (2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

    (2A)The applicant satisfies the Minister as to the applicant’s identity.

    (2B)The Minister is satisfied that during the period:

    (a)starting 10 years before the application was made; and

    (b)ending when the Minister makes a decision to grant or refuse to grant the visa;

    neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).

    (2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

    (3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

    (4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

    (a)compelling circumstances that affect the interests of Australia; or

    (b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

    justify the granting of the visa.

    (5)In this clause:

    information that is false or misleading in a material particular means information that is:

    (a)false or misleading at the time it is given; and

    (b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

    …

    Migration Act 1958

    s.5      Interpretation

    (1) In this Act, unless contrary intention appears:

    …

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)purports to have been, but was not, issued in respect of the person; or

    (b)is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)was obtained because of a false or misleading statement, whether or not made knowingly. 

    …